When the U.S. Government charges someone with espionage, people take notice, as well they should. In this time of war, the Espionage Act of 1917 is back in vogue and whistleblowers are likely to find themselves accused of being spies. However, not all charges of espionage are the same, nor are all claims of whistleblowing.

Teacher’s corner

Drake isn’t the first to be prosecuted under the Espionage Act of 1917. In 1919 Charles Schenck was charged, tried, and convicted with “causing and attempting to cause insubordination in the military and naval forces of the United States” and with disturbing the draft, a charge the U.S. Supreme Court upheld.

Are Drake’s actions protected under the First Amendmen or did he in fact place Americans into a clear and present danger?

It is interesting to compare the case of Tom Drake, a former senior official at the National Security Agency who is facing charges under the Espionage Act of 1917, for—as he sees it—blowing the whistle on NSA incompetence, with Wikileaks’ willy-nilly approach to what they call whistleblowing. (It has been reported that the Justice Department is seriously considering charging one or more persons, probably including Bradley Manning, with violations of the Espionage Act in connection with Wikileaks’ activities over the last year or so.)

The government thinks that Drake leaked specific facts to a reporter from the Baltimore Sun that led to a series of articles (for instance this) on waste, bureaucratic ineptitude, and possibly illegal practices in NSA’s counterterrorism programs. But that’s not even what he’s charged with.

He’s actually charged with unauthorized retention of five classified documents. Five documents. Compare that to Wikileaks, which has publicly released some 77,000 documents about the war in Afghanistan, nearly 400,000 about the war in Iraq, is in the process of releasing approximately 250,000 State Department cables, and recently published 779 files pertaining to detainees at Guantanamo Bay, all in the hope that some malfeasance can be found buried somewhere in that mound of documents.

The release of this information, a week before the raid, could easily have motivated the world’s most-wanted terrorist to flee

I have grave concerns about what Drake allegedly did, but nobody is claiming that he cleaned out NSA’s computer systems and leaked the entire contents as Wikileaks and its American source(s) like to do when they get access to a government computer. Nor is anyone claiming that Drake inflicted the kind of collateral damage that Wikileaks routinely does as it spews forth huge numbers of secrets in an effort to reveal a few abuses.

Most recently, for instance, Wikileaks risked serious damage to U.S. operations when, according to media reports, it released a 2008 document buried in among the others from Guantanamo Bay that linked Osama bin Laden, a courier, and the town of Abbottabad, Pakistan.

We do not know if this report was, in fact, substantively part of the intelligence trail that led to bin Laden. However, the release of this information, a week before the raid, could easily have motivated the world’s most-wanted terrorist to flee, perhaps leaving behind a force to ambush the Americans when they arrived. A free bin Laden might also have been able to bring to fruition his idea of attacking the American rail system on September 11, 2011. Fortunately, Wikileaks’ action didn’t bring about any of these events, but that’s all that saved us: good fortune.

Whistleblowing is an honorable endeavor. In time, we may come to see Tom Drake as upholding that fine tradition. However, the contrast between what he did and what Wikileaks founder Julian Assange and his sources do should be instructive to us all. Words like “espionage” and “whistleblower” should invite scrutiny not passive acceptance.